HARRIS v. U.S.

October 12, 2004.

ROY WILLIAM HARRIS, Plaintiff,
v.
U.S., Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

Defendant Roy William Harris has filed a pro se motion with
the Court seeking relief from the sentence he is currently
serving. Specifically, Harris asks the Court to consider a
downward departure based upon the Second Circuit's recent
decisions in United States v. Lauerson, 343 F.3d 604 (2d Cir.
2003), as amended in a further opinion reported at 348 F.3d 329
(2d Cir. 2003). In Lauerson and its companion case, United
States v. Jackson, 346 F.3d 22 (2d Cir. 2003), the Second
Circuit held for the first time that under the United States
Sentencing Guidelines "in some circumstances an accumulation of
somewhat overlapping enhancements, even if not amounting to
[prohibited] double counting, can justify a downward departure"
from a Guidelines-calculated sentence. Jackson, 346 F.3d at 26
(citing Lauerson). Harris contends that such circumstances are
present in his case and that this Court should now consider and
grant a downward departure from the sentence originally imposed
upon him.

This case has generated a number of opinions by this Court and
the Court of Appeals. The Supreme Court has declined to hear the
case. The circumstances relevant to Harris's present motion are
fully stated in the two most recent opinions, familiarity with
which is assumed: this Court's opinion in Harris s. United States, 293 F.Supp.2d 259 (S.S.N.Y.
2003) ("Harris I"), and the Second Circuit's opinion in Harris
v. United States, 367 F.3d 74 (2d Cir. 2004) ("Harris II").

In Harris I defendant, represented by counsel newly come to
the case, sought to challenge this Court's Guidelines calculation
of his sentence through the procedural vehicle of a motion under
Rule 60(b)(6), which, following five specific grounds for relief
inapplicable to the case at bar, affords relief from a prior
judgment for "any other reason justifying relief from the
operation on the judgment." The government opposed that motion,
arguing that it was procedurally barred and in any event lacked
merit. I thought it right to consider both questions, and
accepted both government arguments. Thus I concluded my opinion
in Harris I denying Harris relief by saying: "Accordingly, I
would hold that if, contrary to the conclusion reached in Part I,
Harris's motion was not procedurally barred, the motion is
without merit." 293 F.Supp. 2d at 284-285 (footnote omitted).

In Harris II, an opinion dated May 4, 2004, the Second
Circuit affirmed the substantive result in Harris I denying
Harris Rule 60(b) relief, but remanded the case for procedural
retooling. Specifically, the Court of Appeals said: "Because
Harris's Rule 60(b) motion attacked the integrity of his previous
habeas proceeding (albeit unsuccessfully), it should simply have
been denied with prejudice. . . . [W]e vacate the judgment of the
district court denying Harris's Rule 60(b) motion as procedurally
barred and remand with instructions to deny the motion with
prejudice." 367 F.3d at 82. Obedient to that instruction, this
Court entered an order dated August 2, 2004, reciting that
"petitioner's Rule 60(b) motion is denied with prejudice."

On June 16, 2003, the same Second Circuit panel (Newman,
Winter, and B.D. Parker, Jr., Ct. JJ.), had heard arguments in
Lauerson and Jackson. The first opinion in Lauerson was
dated September 15, 2003, and the amended opinion was filed on
November 25, 2003. The opinion in Jackson was filed on October 1, 2003. Judge Newman wrote all
three opinions. As noted, Harris relies upon the Second Circuit's
overlapping enhancement ruling in Lauerson as the basis for his
present motion for relief from his sentence in the form of a
downward departure.

Harris's present motion is contained in a letter dated August
5, 2004, addressed to this Court and accompanied by a certificate
of service reciting that on August 4 a copy was mailed to the
United States Attorney for this District. Harris's letter does
not bear a docket number. Its first paragraph says to the Court:
"Please accept the following letter as a Motion to be styled in
accordance with and pursuant to such appropriate rule as your
Honor may deem proper in order to grant relief."

It is entirely appropriate that Harris, now appearing pro se,
asks this Court to identify, if possible, an appropriate
procedural vehicle for the relief he is seeking. My
responsibility for the just administration of this case is a
continuing one. Moreover, the procedural question is not a simple
one; as this case shows, it is capable of vexing federal district
and circuit judges. In Harris II the Second Circuit was kind
enough to say that my "exhaustive opinion" in Harris I
"recognized the procedural intricacies of the case," set itself
to "consider again how district courts should give effect to the
protections of Rule 60(b) with respect to previous habeas
proceedings without allowing unsuccessful habeas petitioners to
bypass the procedures of AEDPA," and in the course of that
consideration found it necessary to clarify what it meant to say
in its earlier opinion in Rodriguez v. Mitchell, 252 F.3d 191
(2d Cir. 2001). No wonder, then, that Harris, writing to the
Court from his place of incarceration and without the advice of
counsel, asks me to place his motion in the proper procedural
pigeonhole, if in fact such a pigeonhole exists.

The government, although served with a copy of Harris's letter
motion, has not responded to it. The AUSA in charge of the case
informally advised my Chambers of the government's view that Harris has no available procedural avenue, and that
accordingly the government would not respond to his motion unless
directed to do so. That was appropriate conduct on the
government's part. The purpose of this Memorandum is to consider
whether the government should be directed to respond formally.

I begin with the preliminary view that the proper proceeding in
which to lodge Harris's present motion is his civil action
against the government bearing docket number 97 Civ. 1904, that
being the case in which this Court decided Harris I. Moreover,
I think it right to regard this motion as a second motion for
relief under Rule 60(b)(6), based upon an entirely different
ground from that underlying Harris's motion under the Rule in
HARRIS I. Construing Harris's present application as a second
Rule 60(b) motion does not trigger an automatic procedural bar
since, unlike habeas petitions governed by the AEDPA, there is no
statutory prohibition against successive Rule 60(b) motions.

Moreover, there may be genuine substance to Harris's claim for
sentencing relief. I use the phrase "may be" because I express no
present view with respect to whether the sort of overlapping
Guidelines enhancements which the Second Circuit held in
Lauerson and Jackson empowered the sentencing judges in those
cases to consider downward departures are also present in
Harris's case. Unless and until I conclude that it is
procedurally permissible for Harris to argue that those cases
apply to his, it would be inappropriate for me to express an
opinion on that argument's merits. But I can properly say that
while the Arochem fraud Harris engineered was egregious and the
economic losses inflicted upon the lending banks enormous, the
statutes of conviction and the Guidelines combined to mandate the
imposition upon the perpetrator of this non-violent offense who
had no prior criminal record a sentence that may reasonably be
regarded as draconian. It follows that if the Second Circuit had decided Lauerson and Jackson before I
sentenced Harris, and the rationale of those cases applied to the
Guidelines calculations of Harris's sentence, I would have given
serious consideration to a downward departure. While I put the
proposition no higher than that, it is sufficient to require an
equally serious consideration of Harris's present motion.

Presumably the government contends that Harris's present motion
is procedurally barred for the reasons most recently stated by
the Second Circuit in Harris II. At first blush, certain
language in Harris II may be read as favorable to Harris. Thus
Judge Jacobs's opinion observes that the question "[w]hen should
a Rule 60(b) motion to reopen a habeas proceeding be construed as
`a second or successive' habeas petition under AEDPA" has
"elicited inconsistent answers across the circuits."
367 F.3d at 79. While three circuits "have adopted the view that, regardless
of the substance of its allegations, such a motion is always `a
second or successive' habeas petition under AEDPA," id.
(emphasis in original) (citations omitted), "[o]ther circuits
have adopted more flexible approaches that look to the underlying
substance of the Rule 60(b) motion in order to determine if it is
tantamount to `a second or successive' habeas petition under
AEDPA." Id. (footnote and citations omitted). Harris II
points out that in Rodriguez, 252 F.3d at 191, the Second
Circuit followed the latter approach, a surface flexibility that
might appear to assist Harris. But the substance of the
procedural rule in this circuit must also be considered. The
present procedural rule in the Second Circuit, declared by
Rodriguez, Gitten v. United States, 311 F.3d 529 (2d Cir.
2002), and Harris II, is that "an attack on the integrity of a
previous habeas proceeding using subsection (6) of Rule 60(b) is
viable," but "only in `extraordinary circumstances,'" Harris
II, 367 F.3d at 77. Moreover, that limited procedural viability
depends upon the movant's ability to characterize his Rule 60(b)
motion as in fact "an attack on the integrity of a previous
habeas proceeding." If the Rule 60(b) motion is properly construed as an attack upon the movant's
underlying criminal conviction, including his sentence, the
movant's procedural posture is less favorable. The Second Circuit
made that plain in Harris II, 367 F.3d at 81 n. 5:

Of course, with or without "extraordinary
circumstances," a Rule 60(b) motion to reopen a
habeas proceeding that attacks the underlying
conviction but not the original proceeding mst either
be (i) treated as "a second or successive" habeas
petition, or (ii) denied "as beyond the scope of Rule
60(b). See Gitten, 311 F.3d at 534.

In the text of the Gitten opinion, the Second Circuit gives
trial judges some advice about how they should proceed in such
circumstances. See Harris II, 367 F.3d at 82. I do not discuss
that advice in this Memorandum, which as I have said has a more
limited purpose.

In Harris II the Second Circuit concluded that Harris's Rule
60(b) motion asserting the incompetence of counsel at the
original habeas proceeding "arguably attacks the integrity of
Harris's habeas proceeding," id. at 80, and accordingly went on
to consider and then deny the motion on its merits: "In the
absence of any extraordinary circumstance under Rule 60(b)(6), we
conclude that Harris's Rule 60(b) motion failed in its attack on
the integrity of the habeas proceeding." Id. at 82.

Two potential problems with Harris's present motion may be
preliminary noted. First, assuming without deciding that the
Guidelines calculation of Harris's sentence involved the same
sort of overlapping enhancements that might justify a downward
departure under Lauerson and Jackson, the Second Circuit
decided Lauerson and Jackson on direct appeal. Indeed, it was
only because the government's cross-appeal in Lauerson
succeeded, restoring an enhancement that the trial judge had
disallowed, that the overlapping enhancements issue which Judge
Newman's opinions address arose. The procedural avenue of direct
appeal is not open to Harris. Second, if the only purpose of Harris's present ...

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